Terms and Conditions | Specialty Food Process Technologies

SPECIALTY FOOD PROCESS TECHNOLOGIES LLC STANDARD TERMS AND CONDITIONS

The following terms and conditions form part of each purchase order or contract (such purchase order or contract being the “Contract”) entered into by SPECIALTY FOOD PROCESS TECHNOLOGIES LLC. (“SFPT”) and of the proposal made by SFPT for its sale of equipment and services to a purchasing customer (the “Purchaser”). These terms and conditions shall supersede, and shall be substituted for any conflicting provisions proposed by the Purchaser in its terms and conditions in its purchase order or contract. Any payment made by Purchaser to SFPT shall be evidence of Purchaser’s assent to these terms and conditions.

I. ACCEPTANCE This proposal shall lapse automatically upon the expiration of a period of thirty (30) days after its date of submission unless it has been previously accepted by Purchaser or revoked by SFPT. Such notice of revocation shall be deemed to have been given when mailed by certified mail, postage prepaid. This proposal shall become a binding contract, as accepted by Purchaser, only when approved in writing hereon by an officer of SFPT at its home office in Columbia, Maryland (it being expressly agreed by the parties that when so executed, such contract shall be considered as being made and entered into in the State of Maryland).

II. COMPLETION AND DELIVERY. SFPT will make every effort to make delivery or complete the work within the time specified in SFPT’s proposal or the Contract. SFPT shall attempt to overcome but shall not be liable for any loss or damage from delay in delivery of any equipment or completion of any work as a result of causes of any kind beyond the reasonable control of SFPT, such as, but not limited to, strikes or other labor difficulties, war, riots, changes in laws and regulations and other acts of governmental authorities, inclement weather, fire, flood, unavoidable casualties, delays in transportation of materials, or inability to obtain timely delivery of materials from suppliers. In event of any such delay, SFPT will notify the Purchaser with a reasonable time and it is agreed that the time for delivery or completion shall be extended for a period of time at least equal to the time lost by reason of the delay. An unexcused delay in delivery or completion of work shall not give rise to cancellation by Purchaser until thirty (30) days after written notice of such intention to cancel shall have been actually received by SFPT, and Purchaser shall be obligated to accept any equipment shipped or delivered or work completed by SFPT during such period. Any claims by the Purchaser for loss due to delay in delivery or completion of work shall be waived unless made in writing and delivered to SFPT within five (5) days after delivery or completion of the work. If Purchaser refuses delivery of any equipment, materials or other goods by SFPT according to the Contract, then Purchaser shall pay immediately all amounts due and owing to SFPT based on delivery having been made and all risk and cost of storage of the equipment, materials and other goods pending delivery shall be for the Purchaser’s account.

III. INSTALLATION. If installation of the equipment is included in the Contract, then SFPT’s “Terms and Conditions for Installation and Construction Contracts” shall be applicable in addition to these Standard Terms and Conditions.

IV. MATERIAL AND WORKMANSHIP WARRANTY. SFPT warrants to the Purchaser the equipment purchased from SFPT is free from defects in material and workmanship for a period of twelve (12) months from the date of Purchaser’s commercial use of the equipment but not more than eighteen (18) months from the date of delivery of the equipment provided that:

1. the equipment is installed in accordance with SFPT’s specifications and instructions and is used and maintained normally and properly in accordance with SFPT’s instructions as to maintenance and operation, whether given orally or set forth in written operation and maintenance manuals and instruction sheets furnished by SFPT;
2. the equipment is used for processing product consistent with the specifications outlined in the purchase order or contract, and if no specifications are stated, the equipment is used to process product identical to product provided to SFPT for testing prior to the Contract being entered into, or if no product is tested, identical to the product identified in any Material Safety Data Sheet; (c) the equipment has not been changed without the prior written approval of SFPT;
3. Purchaser gives prompt written notice to SFPT before the end of the warranty period specifying all alleged defects in the equipment purchased; and
4. Purchaser preserves and turns over to SFPT or permits reasonable inspection by SFPT of all allegedly defective equipment, parts or items.

This warranty shall not cover (i) any equipment furnished by Purchaser or any third party (other than a subcontractor of SFPT), (ii) any defects arising from corrosion, abrasion, use of unsuitable lubricants, or negligent attendance or faulty operation, (iii) ordinary wear and tear, or (iv) any defects caused by errors on the part of the Purchaser in not providing suitable premises in which the equipment is to be located, adequate foundation works, or adequate protections against influences within or outside the premises which may affect the equipment or its operation. Notwithstanding the warranty set forth above, SFPT shall not warrant any equipment, where the vendor of such equipment (other than SFPT) is specified by Purchaser, for a period longer than warranted by the vendor. UNLESS OTHERWISE EXPRESSLY STATED IN ANY DOCUMENT ATTACHED TO THESE GENERAL TERMS AND CONDITIONS, THIS WARRANTY OF MATERIAL AND WORKMANSHIP IS THE ONLY WARRANTY MADE BY SFPT AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SFPT DISCLAIMS ON BEHALF OF ITSELF, ITS SUBCONTRACTORS AND SUBSUPPLIERS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE (OTHER THAN THE PURPOSE STATED IN THE PURCHASER’S SPECIFICATIONS SET FORTH IN THE CONTRACT), SUITABILITY OR PERFORMANCE. No other promise or affirmation of fact (including, but not limited to, statements regarding capacity or performance of the equipment) shall constitute a warranty of SFPT or give rise to any liability or obligation on the part of SFPT. SFPT’s obligation under this warranty and any other warranty or guarantee which is part of the Contract is strictly and exclusively limited to furnishing repairs or replacements for equipment or parts determined to be defective on inspection by an authorized representative of SFPT. SFPT assumes no responsibility and shall have no liability for any repairs or replacements by Purchaser without SFPT’s prior written authorization.

If the Purchaser discovers a defect during installation of the equipment, Purchaser is to advise SFPT as soon as possible after a problem is detected by telephone, followed by written confirmation, telecopy, telex, etc., giving detailed information of the alleged defect and the reason that it is considered SFPT’s responsibility. In addition, Purchaser shall provide details to include projected direct costs and delays (number of people, rental equipment, etc.), if any, which may result from alleged defect. SFPT and Purchaser will then mutually agree to a reasonable response time. SFPT will have access to the job site to inspect and review with the installation contractor and Purchaser’s personnel any alleged defect when SFPT believes such a visit is necessary. Backcharges will not be accepted by SFPT unless SFPT has authorized such charges prior to commencement of work, except for charges incurred to prevent an emergency; i.e., personnel safety or an occurrence of imminent hazard, etc. If the emergency charges occur, Purchaser will document the incident and submit the details to SFPT for review. When responsibility for outstanding backcharges cannot be resolved by normal channels, periodic meetings will be held as required to resolve the disputes.

V. DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THE CONTRACT TO THE CONTRARY, (A) SFPT’S AND ITS SUBCONTRACTORS’ AND SUBSUPPLIERS’ AGGREGATE RESPONSIBILITY AND LIABILITY, WHETHER ARISING OUT OF CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, UNDER THE CONTRACT, INCLUDING, BUT NOT LIMITED TO, ALL CLAIMS FOR BREACH OF ANY WARRANTY OR GUARANTEE, FAILURE OF PERFORMANCE OR DELAY IN PERFORMANCE BY SFPT OR PERFORMANCE OR NON-PERFORMANCE OF THE PURCHASED EQUIPMENT SHALL NOT EXCEED THE CONTRACT PRICE FOR THE PURCHASED EQUIPMENT, AND (B) IN NO EVENT SHALL SFPT, ITS SUBCONTRACTORS OR SUBSUPPLIERS BE LIABLE IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR CHARACTER, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF PRODUCTIVE FACILITIES OR EQUIPMENT, PLANT DOWNTIME, LOSS OF PRODUCT, CHEMICALS, CATALYSTS, FEEDSTOCK OR OTHER RAW MATERIALS, LOSS OF REVENUES OR PROFITS OR LOSS UNDER PURCHASES OR CONTRACTS MADE IN RELIANCE ON THE PERFORMANCE OR NONPERFORMANCE OF THE PURCHASED EQUIPMENT, WHETHER SUFFERED BY PURCHASER OR ANY THIRD PARTY, OR FOR ANY LOSS OR DAMAGE ARISING OUT OF THE SOLE OR CONTRIBUTORY NEGLIGENCE OF THE PURCHASER, ITS EMPLOYEES OR AGENTS OR ANY THIRD PARTY.

VI. TAXES. The price to be paid by Purchaser as quoted in the proposal is exclusive of any state, local or municipal taxes, including sales or use taxes, which may be payable in respect of the sale, purchase or use of the equipment or parts furnished by SFPT. The payment of all such taxes shall be the responsibility of the Purchaser. SFPT must receive appropriate tax exemption certificates attached to Purchaser’s purchase order; otherwise, applicable sales or use tax will be charged by SFPT on each invoice.

VII. PATENT INFRINGEMENT. SFPT will hold the Purchaser harmless against any liability arising out of any claim that the equipment, or SFPT designed parts furnished by it, infringes any United States patent (except for equipment or parts of special design, construction or manufacture or any special process for, or use, of such equipment or parts specified or originated by the Purchaser with respect to which the Purchaser similarly agree to indemnify SFPT) provided that the indemnity of SFPT shall not exceed the amount paid to SFPT by the Purchaser under the Contract, and provided further that the Purchaser promptly notifies SFPT in writing of such claim of infringement, that the defense of any legal action relating to such claim shall be under the direction and control of SFPT, and that the Purchaser shall cooperate with SFPT in making such defense.

VIII. SECURITY INTEREST. Without waiving any rights to elect to proceed under applicable lien laws, SFPT reserves a security interest in the equipment and parts furnished by it pursuant to the Contract. By accepting delivery of the equipment or parts, Purchaser grants to SFPT a security interest in such equipment and parts to secure the full and prompt payment for such equipment and parts until the agreed price (including any notes therefor) for such equipment and parts has been fully paid in cash. In the event of default in payment, SFPT shall have all rights of repossession and other rights available to a secured party under the laws applicable thereto. The Purchaser agrees that no part of the equipment or parts furnished under the proposal shall be considered a fixture or a part of any realty by reason of its being attached to real estate, and any equipment or parts may be separated from real estate for purpose of repossession by SFPT or by its agent without liability for such removal of the Purchaser is in default in payment. Purchaser agrees to execute and deliver to SFPT (and Purchaser hereby irrevocably constitutes and appoints SFPT as its attorney-in-fact to execute, deliver and file with the appropriate filing office or offices on Purchaser’s behalf) all assignments, financing statements and other documents which SFPT may require to evidence or perfect such security interest in accordance with applicable laws.

IX. RISKS OF LOSS. The Purchaser shall bear the risk of loss of or damage to the equipment and parts after delivery of the equipment and parts to the job site or to the shipping point if delivery F.O.B. shipping point is specified.

X. CHANGES. If, pursuant to the Purchaser’s written direction or request, any change is made in the equipment to be furnished or the work to be performed, the agreed price shall be adjusted to reflect such change and the time for completion under the Contract shall be extended to the extent required to make such change.

XI. LAWS AND REGULATIONS. The equipment or work purchased from SFPT shall comply with all applicable laws, rules, regulations, codes and standards of all federal, state, local and municipal governmental agencies having applicable regulatory jurisdiction, as such laws, rules, regulations, codes and standards are in effect on the date of the Contract, provided that:

the Purchaser will include in its specifications or will bring to the attention of SFPT in writing any state, local or municipal laws, rules, regulations, codes or standards which are more strict than those imposed by the federal governmental agencies and authorities;
if any such federal, state, local or municipal laws, rules, regulations, codes or standards are changed, or if new laws, regulations, codes or standards or interpretations thereof are enacted or adopted subsequent to the date of the Contract, which require a change in SFPT’s equipment or work, an equitable adjustment shall be made to the contract price, delivery schedule and payment terms; and
SFPT does not guarantee any compliance with, nor will SFPT incur any liability for failure of the equipment or work to comply with, any federal, state or local pollution control, effluent or utility control laws, rules, regulations, codes or standards; provided, however, that SFPT will comply in accordance with (a) above with any specific equipment emissions guarantees with form part of the Contract.

XII. ARBITRATION. Any and all disputes arising out of or in connection with the Contract shall, at the option of either party, be submitted to a panel of three arbitrators in the City of Washington, D.C., one to be appointed by each party, and the third by the two so chosen. If the parties agree, the dispute may be submitted to one arbitrator mutually agreeable to both parties. If there is a failure to select arbitrator(s) in this manner, then the arbitrator(s) shall be selected in accordance with the Rules of the American Arbitration Association. The decision of the arbitrator, or in the case of three arbitrators, of any two of them, shall be binding and final. The arbitration shall be held in accordance with the Rules of the American Arbitration Association. Judgement upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order for enforcement as the case may be.

XIII. PROPRIETARY AND CONFIDENTIAL INFORMATION. All drawings, notebooks, operating data, specifications, and other information, data and material furnished to Purchaser by either SFPT or any of its subcontractors or subsuppliers shall remain the proprietary and confidential property of SFPT or the subcontractors or subsuppliers, respectively, and shall be used by Purchaser only with respect to the work covered by the Contract and shall not be used by Purchaser in connection with any other project. Such proprietary and confidential information and data shall not be shown or otherwise made available to any third party at any time without SFPT’s prior written consent, nor shall any third party be permitted to measure or otherwise technically examine or test SFPT’s equipment without SFPT’s prior written consent. Any such proprietary and confidential information which Purchaser determines must be disclosed to its employees, shall only disclosed to its employees on a need-to-know basis for the operation, maintenance, and repair of the equipment provided under the Contract. Intellectual property or patent rights may be obtained on the basis of the information given or made available to Purchaser under the Contract or with respect to SFPT equipment shall remain the exclusive property of SFPT or its subcontractors and/or subsuppliers, respectively.

XIV. SAFETY REQUIREMENTS OF PURCHASER. Purchaser shall use, and shall train and require its employees to use, all safety devices, guards, and proper safe operating and maintenance procedures as prescribed by all applicable laws, rules, regulations, codes and standards and as set forth in operating and maintenance manuals and instruction sheets furnished by SFPT. Purchaser shall not remove or modify any safety device, guard or warning sign. If the Purchaser fails to strictly observe any of the obligations set forth in the preceding two sentences with regard to any of SFPT’s equipment, Purchaser agrees to defend SFPT against, and indemnify and save SFPT harmless from, any liability or obligation (including the costs and attorneys’ fees of any suit or claims related thereto) incurred by SFPT as a result of persons being injured or property being damaged directly or indirectly in connection with the operation of such equipment as a result of such failure. Purchaser also agrees to indemnify and save SFPT harmless from, any liability or obligation incurred by SFPT as a result of persons being injured or property being damaged due to use of SFPT equipment for materials or products not specified in the Contract or use of non-original spare parts not specifically authorized in writing by SFPT or due to changes in the SFPT equipment made by Purchaser without SFPT’s specific written authorization. If the terms of the Contract do not require SFPT to install and commission the SFPT equipment, Purchaser shall permit SFPT to have an engineer on site during commissioning to perform a health and safety check, and in the absence of such permission, Purchaser assumes full responsibility for operation, training and verification of all aspects of health and safety with respect to SFPT’s equipment.

XV. DEFAULT BY PURCHASER. In the event that the Purchaser becomes insolvent, becomes the subject of any bankruptcy proceeding, or defaults in the performance of any term or condition of the Contract, the entire unpaid portion of the purchase price shall, without notice or demand, become immediately due and payable. In any such event, SFPT at its option, without notice or demand, shall be entitled (1) to sue for said balance of the purchase price and for reasonable attorneys’ fees plus out-of-pocket expenses and interest; (2) to enter any place where said equipment or parts are located and to take immediate possession of and remove said equipment or parts with or without legal process; (3) to retain all payments previously made as compensation for the use of said equipment or parts; (4) to resell said equipment or parts at public or private sale without notice or demand for and on behalf of the Purchaser; and (5) to apply the net proceeds from such sale (after deduction from the sale price of all expenses of such sale and all expenses of retaking possession, repairs necessary to put said equipment in salable condition, storage charges, taxes, liens, collection and attorneys’ charges and all other expenses in connection therewith) to the balance then due to SFPT for said equipment and parts and to receive from the Purchaser the deficiency between such net proceeds of sale and such balance. The Purchaser hereby waives all trespass, damage and claims resulting from any such entry, repossession, removal, retention, repair, alteration and sale. The remedies provide in this paragraph are in addition to and not in limitation of any other available remedy or remedies of SFPT, and each and every such remedy shall be cumulative and shall be in addition to every other remedy under the Contract or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed as a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient.

XVI. TESTING AND PAYMENT DELAYS. In the event that tests are required by the Contract to determine the performance or acceptance of the equipment, and if any payment is predicated on those tests, then SFPT shall notify the Purchaser of the readiness of the equipment for testing, and if such tests or any subsequent tests cannot be concluded for reasons beyond the reasonable control of SFPT, then the payment conditioned on such testing shall be released immediately to SFPT. If the equipment does not satisfy the performance test for reasons within the reasonable control of SFPT, then the equipment shall be retested as soon as reasonably practicable after SFPT indicates the equipment is ready for retesting. Any payment due under the Contract which is not paid on the date when due shall bear interest at the prime rate of interest announced and declared from time to time by NationsBank, NA

XVII. INTEGRATION CLAUSE. By acceptance of this proposal, the Purchaser acknowledges (1) that it has not relied on any previous written, oral or implied representation, inducement or understanding of any kind or nature, (2) that SFPT’s proposal, including these Standard Terms and Conditions and any drawings incorporated in the proposal by reference, embodies the entire agreement between the Purchase and SFPT and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, (3) that the Contract entered into by acceptance of SFPT’s proposal by the Purchaser may not be modified or terminated except in writing signed by a duly authorized representative of SFPT making specific reference to the Contract, and (4) the Purchaser may not assign the Contract without the prior written consent of SFPT.

XVIII. WAIVER. No claimed waiver of any of the provisions of the Contract shall be valid unless signed by a duly authorized representative of SFPT, and SFPT’s waiver of one provision shall not constitute waiver of another provision. SFPT shall not be bound by any additional or different terms unless those terms are accepted in writing by an authorized representative of SFPT making specific reference to this proposal.

XIX. REFUNDS: All products and services are made to order. Once orders are placed and payment methods are charged, refunds will not be given under any circumstances.

XX. GOVERNING LAW. The parties hereby agree that all rights and obligations of the parties under the Contract will be governed by the laws of the State of Wisconsin.